condition could be waived unless the waiver was written upon or attached to the policy.

So, stating that an insurance agent may by his conduct or words waive a provision requiring vacancy permits to be indorsed on the policy, although "the policy provides that it can only be done by writing indorsed on the policy," the court in People's Nat. F. Ins. Co. v. Jackson (1913) 155 Ky. 150, 159 S. W. 688, held that the statement of the agent to the insured, in response to the latter's communication that the property had become vacant, that the policy would stand in full force, was a waiver of the condition in the policy requiring permission for vacancy to be indorsed in writing.

And in Cosmopolitan F. Ins. Co. v. Gingold (1912) 3 Ala. App. 537, 57 So. 266, where it was held that the written indorsement of a consent to an assignment of the interest in the property insured was sufficient when the agent indorsed such consent upon the policy and returned it to the owner with the assurance that it was all right, but failed to sign the indorsement, the court said, further, that evidence that the person originally procuring the policies had taken them through the agent of the insurer, and requested a transfer of the policies to the person to whom the property was sold, and that the agent said, "All right," and that, in response thereto, the policies were left with him, would have been properly admitted as furnishing a basis of an estoppel upon the defendant to question the sufficiency of the consent to a change of beneficiaries.

So, under a policy providing that anything less than a specific agreement clearly expressed and indorsed on the policy should not be construed as a waiver of any condition therein, the promise of the insurer's agent, when the insured asked for a renewal and made it known to the agent that he had sold the premises contrary to the conditions of the policy, in reference to such violation of conditions, that he would "make it all right," is a waiver of the condition of the policy requiring an indorsement of a con

sent to a change of interest. Whited

v. Germania F. Ins. Co. (1879) 76 N. Y. 415, 32 Am. Rep. 330.

On the other hand, where an agent, upon being informed by the insured that the property had, contrary to the terms of the policy, become vacant, stated that that was "all right," the court in Messelback v. Norman (1890) 122 N. Y. 578, 26 N. E. 34, held that in view of a provision in the policy that the use of general terms, or anything less than distinct and specific agreements clearly expressed and indorsed on the policy, should not be considered as a waiver of any conditions therein, there had been no waiver of a condition requiring consent to vacancy to be indorsed in writing; especially as the insured had not sustained the burden of showing that the agent had any power to waive provisions otherwise than in the way provided in the policy.

If there is no express limitation on the power of the agent, a statement by him at the time the policy was issued that the insured might encumber the property to a certain amount, and a promise to indorse this agreement on the policy, will estop the insurer from setting up as a defense to the policy a failure to comply with the provision requiring written consent to encumbrances on the property, if in fact the agent fails to make the indorsement, for the insured had a right to rely upon the agreement of the agent to write it on the application, and to assume when they took the policy that the company had waived all conditions inconsistent with their rights in this respect. Copeland v. Dwelling-house Ins. Co. (1889) 77 Mich. 554, 18 Am. St. Rep. 414, 43 N. W. 991.

And, following Mentz v. Lancaster Ins. Co. (1875) 79 Pa. 475, the court in Davis v. Home Ins. Co. (1920) 74 Pa. Super. Ct. 92, held that where the insured, whose policy forbade additional insurance unless the written consent thereto was indorsed on it, took his policy to the defendant's agent and requested such indorsement, advising him that he had secured additional insurance, and the

agent told him that the matter would be taken under consideration, and a few days later assured him that such indorsement had been made, the court held that the insured was entitled to rely upon such promise; that the insurer could not set up as a defense failure of indorsement. And a somewhat similar conclusion was reached in McGinness v. Caledonian Ins. Co. (1922) 78 Pa. Super. Ct. 376, where the court held that an agent's agreement to attend to making an indorsement of a consent to a transfer of the property to a different location was binding on the insurer, although no written indorsement was actually made.

So, where the agent issuing a fire insurance policy on premises occupied by a tenant is, after the policy has become effective, informed by the insured that the tenant had moved out and that the premises were unoccupied at that time, his statement in response thereto, "It is all right," is a waiver of a condition avoiding the policy should the premises become unoccupied without the written consent of the company indorsed on the policy; and precludes the company from avoiding it on that ground. Palmer v. St. Paul F. & M. Ins. Co. (1878) 44 Wis. 201.

And an insurance company is estopped to take advantage of the provision in a policy requiring an indorsement in writing of the company's consent to a change of ownership of the property, where it has authorized its agent to secure another premium note from the new owner for the amount of the increased rate which the company proposes to charge because of the change in ownership, with a promise, in effect, that, if the note is satisfactory, the consent to the change will be indorsed on the policy. Medearis v. Anchor Mut. F. Ins. Co. (1897) 104 Iowa, 88, 65 Am. St. Rep. 428, 73 N. W. 495.

And in Pennsylvania, notwithstanding the rule that a general agent of an insurance company had no power to waive an express condition in the policy, it has been held that a statement of a general agent, having pos

session of the insurance policy, that the fact of the insured procuring additional insurance had been indorsed on the policy pursuant to the condition requiring such indorsement, when in fact such indorsement had not been made, will estop the insurer from objecting to a want of indorsement; for such declaration, made by a duly authorized agent, "lulled the party to sleep by the assurance that the condition of the policy had been complied with and that his indemnity was secured." Mentz v. Lancaster F. Ins. Co. (1875) 79 Pa. 475. This case was followed in Smith v. West Branch Mut. F. Ins. Co. (1906) 31 Pa. Super. Ct. 29. And to the same effect is Worcester Bank v. Hartford F. Ins. Co. (1853) 11 Cush. (Mass.) 265, 59 Am. Dec. 145; Kotwicki v. Thuringia Ins. Co. (1903) 134 Mich. 82, 95 N. W. 976.

See also Redstrake v. Cumberland Mut. F. Ins. Co. (1882) 44 N. J. L. 294, where the insured, desiring to secure additional insurance, delivered the policy to an authorized agent for the indorsement of the company's consent to such additional insurance, as required by the policy, and the agent subsequently returned the policy to him, declaring "it was all right," and it was held that the insurer was estopped from denying that an indorsement had been made, where, relying on the agent's statement, and without examining the policy, which in fact was not indorsed, the plaintiff procured other insurance.

And the Arkansas court has held that evidence that the policyholder took his policy to the office of the insurance company for indorsement of certain matters thereon, including permission to take out other insurance, but no indorsement regarding other insurance was made, and that thereafter the policyholder again took the policy to the insurer, and requested the vice president to indorse such permission or return unearned premiums in case the indorsement could not be made, and that officer assured him that the indorsement would be made, justifies a finding that the insurer had waived forfeiture on ac

count of the failure to indorse permission for additional insurance, where thereafter the policy was returned to the insured without the indorsement, and without any indication on the insurer's part that it would treat the policy as void, Arkansas Mut. F. Ins. Co. v. Claiborne (1907) 82 Ark. 150, 100 S. W. 751. And this case was followed and approved in Neimer v. Claiborne (1908) 87 Ark. 72, 112 S. W. 387.

b. Promise to make indorsement when necessary.

The rule that a promise to make indorsements on an insurance policy amounts to a waiver of, or estoppel to assert, a provision requiring a written indorsement on or attached to the policy, if in fact the indorsement is not made, is generally held not to extend to a promise or agreement by the agent to make indorsements in the future when the same should become necessary to the validity of the policy by reason of acts of the insured.

Thus, it has been held that the promise of an agent authorized to issue and countersign policies and to issue vacancy permits subject to the company's approval, made at the time of the issuance of the policy, to keep the policy in force, cannot be relied upon as a waiver of the requirement of the policy of a written indorsement of consent to subsequent vacancy of the property during the life of the policy. Home F. Ins. Co. v. Wilson (1913) 109 Ark. 324, 159 S. W. 1113. The court stated: "An agent's executory agreement to waive future breaches, if any should occur, is not enforceable, for such an agreement is not a waiver of the effect of an existing condition, but is an amendment, to the extent of such an agreement, of the terms of the written contract between the parties, evidenced by the policy of insurance. The understanding ... is no more than an executory contract to keep appellees' insurance in effect, and to do whatever may be necessary for that purpose."

And a letter written by the insurer's agent to insured. assuring the latter that consent will be given to

additional insurance which he desires to procure, merely expresses a willingness to permit additional insurance, and not a consent to any specific additional insurance, and, therefore, does not meet the requirement of the policy that consent to additional insurance shall be written thereon. Allemania F. Ins. Co. v. Hurd (1877) 37 Mich. 11, 26 Am. Rep. 491.

So, the promise of a soliciting agent, having no authority to make binding contracts of insurance, that for an additional consideration he could fix the policy so that a change in the use of the property would not work a forfeiture, will not estop the insurer from setting up as a defense on the policy a violation of the provision avoiding it if the premises were used for any purpose other than those stipulated, notwithstanding that the insured, who could not read English, relied on the representation of the agent. Cornelius v. Farmers Ins. Co. (1901) 113 Iowa, 183, 84 N. W. 1037. The court said that the doctrine of estoppel never applies save where the representation relates to a present or past fact or state of facts, unless it has reference to an intended abandonment of an existing right, upon which the other relies; in other words, an estoppel does not apply to future contingencies.

Similarly, where the agent informed the insured that, by the policy, which provided for a forfeiture in case of a change of interest, title, or possession unless otherwise provided for by an indorsement, when a contemplated transfer of interest took place, it would be necessary to have the assent of the company indorsed on the policy, and that he, the agent, would make indorsement, but the insured, who was not familiar with the English language, understood him to promise substantially that he would take steps. to keep the policy valid, the court in Keith v. Royal Ins. Co. (1903) 117 Wis. 531, 94 N. W. 295, held that the transfer of an interest in the property without an indorsement of the consent thereto on the policy voided it, as there was nothing to indicate that its agent had knowledge that the

insured misunderstood him, and there was no proof or finding that the insured in any wise relied upon the silence of the insurer after such conversation.

c. Where policy is in possession of insured.

Likewise, the rule that no estoppel or waiver arises from the failure of an agent with limited power to make indorsements where the policy is in the possession or control of the insured applies, where there is no limitation on the agent's power of waiver, so that an agent's promise to indorse consent to a transfer when the plaintiff should bring the policy to him does not constitute a waiver of the provision requiring a written indorsement to a consent to the change of ownership where the insured never presented the policy for indorsement, for in such case the agent merely offered to act in accordance with the letter of the policy, and did nothing to mislead the insured. Equitable Ins. Co. v. Cooper (1871) 60 Ill. 509. See also Long v. Hartford F. Ins. Co. (1920) 25 Ga. App. 24, 102 S. E. 379.

And where the policy was in the possession of a third person at the time the insured requested the insurer's agent to indorse a consent to the change of ownership, as required by the terms of the policy, and the insured thereafter went to such third person for the purpose of getting the policy to have the indorsement made, but failed to get it, and was then assured by the agent that he would "fix it all right," and that "it will be all right," it was held in Kompa v. Franklin F. Ins. Co. (1905) 28 Pa. Super. Ct. 425, that, assuming that the agent was authorized to act as general agent in matters relating to policies issued by him, yet there was no waiver of the condition requiring a written indorsement of a consent to a change of ownership in order to make it binding on the company, nor was the company estopped to set up a failure to comply with that condition, inasmuch as the insured knew the conditions of the policy, and knew that at the time of his transaction

with the agent those conditions had not been complied with.

And in Mattingly v. Springfield F. & M. Ins. Co. (1905) 120 Ky. 768, 90 S. W. 577, the court said that the rule is that, where an insurance agent is approached by the insured respecting permission to do something which by the terms of the policy will avoid it unless permission is indorsed on the policy in writing, no waiver arises from the agent simply telling the assured to bring the policy in and he will make an indorsement; however, the question in that case was whether the agent expressly consenting to the assured retaining his policy as security for his purchase price amounted to a waiver to a provision that a consent to doing this must be indorsed on the policy, notwithstanding that the terms of the policy provided that no subsequent agreement should be valid unless in writing and indorsed on the policy.

See also Monk v. Penn Twp. Mut. F. Ins. Asso. (1905) 27 Pa. Super. Ct. 449, which holds that one who has taken out additional insurance avoiding a policy already held by him unless consent thereto is indorsed thereon by the insurer, upon application by the policyholder, cannot recover on his original policy for want of an indorsement and consent to additional insurance, notwithstanding that, in a chance conversation with the secretary of the insurer, he informed the secretary that he had procured additional insurance, and was told, "That is all right; send down your policy sometime, and I will indorse it on the policy," if in fact the insured never sent the policy for such indorsement.

On the other hand, in American. Cent. Ins. Co. v. McCrea (1881) 8 Lea (Tenn.) 513, 41 Am. Rep. 647, it was held that a condition of a policy requiring a written indorsement of the consent to additional insurance is waived, notwithstanding another condition that nothing less than a distinct agreement, clearly expressed and indorsed, shall amount to a waiver of any written condition, where the gen